October 24, 1996

In re: Steve Monroe/Warren County Fiscal Court

Open Records Decision

This matter comes to the Attorney General on appeal from Steve Monroe's request to inspect certain records in the custody of the Warren County Fiscal Court Clerk. On September 16, 1996, Mr. Monroe requested to inspect the following records:

1. The Canteen contract agreement of the Warren County Regional Jail covering the period from January 1996 to date.

2. The Treasurer's monthly reports covering the period above mentioned of the Warren County Regional Jail Canteen.

As of September 30, 1996, Mr. Monroe had received no response to his open records request, and subsequently filed an open records appeal with this office. On October 7, 1996, this office sent a notification of open records appeal to Marie Smith, Warren County Fiscal Court Clerk, informing her that an appeal had been filed by Mr. Monroe. On October 11, 1996, Ms. Smith responded to Mr. Monroe's request, stating:

Please be advised that the information you requested regarding the Warren County Regional Jail Canteen is available at the Warren County Regional Jail. Please contact Jailer Jackie Strode.

We are asked to determine if the Warren County Fiscal Court Clerk violated the provisions of the Open Records Act in responding to Mr. Monroe's request. For the reasons set forth below, we conclude that although the Clerk's response was untimely, she substantially complied with the Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Ms. Smith's response was issued nearly eighteen days after receipt of Mr. Monroe's request. We urge the Warren County Fiscal Court Clerk to review the cited provisions to insure that future responses conform to the Open Records law.

Turning to the substantive issue in this appeal, we find that Warren County Fiscal Court Clerk substantially complied with the Open Records Act. KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

In her response, Ms. Smith informed Mr. Monroe that his request should be directed to Jackie Strode, jailer and custodian of records for the Warren County Regional Jail. She also provided Mr. Monroe with the custodian's address. This office has no reason to doubt the public agency's statements that the documents requested are not in its custody and control. Ms. Smith's response to Mr. Monroe was proper and consistent with the Open Records Act, and KRS 61.872(4). Ms. Smith has confirmed in a telephone conversation with this office that the fiscal court does not maintain a copy of the requested records. Obviously, the Warren Fiscal Court Clerk cannot make available for inspection documents which she does not have in her possession or custody.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A.B. Chandler III Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Steve Monroe

Bell County Forestry Camp

Route 2, Box 75

Pineville, Kentucky 40977

Marie Smith

Fiscal Court Clerk

Warren County Courthouse

429 East 10th Avenue

Bowling Green, Kentucky 42101

Jackie Strode, Jailer

920 Kentucky Street

Bowling Green, Kentucky 42101